Businesses face a legal maze when it comes to employees in different European countries using social media.
Privacy laws vary greatly from country to country and businesses need to make sure they are prepared for region they are working in, says Kathryn Dooks, partner at law firm Kemp Little.
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The warning comes as businesses face growing pressure to introduce formal social media policies for their employees.
Recent tribunal cases have shown that both companies and employees can be placed at risk when employers have not thought thorough how they will use social media.
In some countries, there are legal restrictions against companies monitoring social media posts by their employees, or prospective job candidates.
Other countries require employers to consult with the works council, or works health and safety committees, before they can introduce social media policies for their employees.
In this article, specialist lawyers highlight the legal principles companies need to consider in Germany, Italy, France and the UK.
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Employers can legitimately check a potential employee’s profile on LinkedIn and Xing, before hiring them.
But they can run into legal difficulties if they look at Twitter or Facebook.
“The fact that you looked into Facebook would be regarded as an indication of discrimination,” Bernd Joch said, speaking at a legal seminar.
Companies found guilty could be required to pay the jobseeker an indemnification of between one and three months' salary.
Banning social media
In practice, most German firms ban employees from using social media in the office, Joch revealed.
This is because German law regards companies that allow staff to use social media at work as telecoms service providers.
The law gives them a duty of confidentiality which makes it difficult for firms to legally monitor their employees' social media activities.
“Sorry folks, it's not nice, but at the end of the day, everybody has a BlackBerry or a mobile device [for social media] – just don’t use it in work time,” says Joch.
French companies are legally obliged to tell job applicants if they are going to check their comments on social media.
But gathering information on social media that is not related to the job, such religious views or sexual orientation, is a criminal offence that could lead to heavy compensation, says Anne-Lise Puget, lawyer at Bersay & Associes.
French law sets out to balance the right of employees to freedom of expression inside and outside of work, with the right of companies to protect their reputation.
However, companies will need to jump through hoops if they want to monitor employees' social media posts.
This includes consulting the health and safety committee, consulting the works council, informing the data protection agency what information will be collected and who will collect it and informing employees.
“Once you have done all this, the information you collect from professional devices is yours. You can monitor it without informing the employee,” Anne-Lise Puget says.
Under Italian law, employers have the right to ban social media during work time. However, employees can legitimately use social media during lunch and refreshment breaks.
Italian law also gives employees the right to express their opinions on workplace matters on social media.
But their comments have to be based on truth, says Andrea Gangemi, lawyer at Portolano Cavallo.
“They should not make negative comments about the employer or client,” Gangemi says.
At the same time, employers have the right to monitor staff’s use of social media, providing they have clear policies in place and consult with trade union representatives.
The policy must say clearly whether employees can use social media during work time, and how they should use it, he says.
It should describe what systems will be monitored, how the data will be collected and who has access to it.
If employees do misuse social media, employers need to act immediately or they could be at risk of a later legal challenge, says Gangemi.
This means writing a letter in Italian to the employee and waiting five days for the employee to respond before issuing a written or verbal warning.
“It is important to do this for each misuse,” says Gangemi.
Companies in the UK can monitor employees’ social media activities without consent, providing they undertake an impact assessment.
Companies are also free to check the social media activities of job candidates, provided they inform candidates and the checks are not excessive.
If employers find something untoward, they should give the candidate the right to respond, says Kathryn Dooks, partner at Kemp Little.
Refusing a job because of religious beliefs or sexual orientation is illegal in the UK.
In practice, Dooks advises companies to create an overarching social media policy that will cover the key principles in each country the firm operates.
They can then tailor the training they offer to staff in each country, she says.